PURCHASE TERMS & CONDITIONS
2. Taxes. The prices set forth in any PO are deemed to include all taxes. If any manufacturer’s excise or other similar or different taxes are paid on the product described in any PO and if such tax, or any part thereof, is refunded to Supplier, then Supplier shall immediately pay Buyer the amount of such refund. Supplier will not charge Buyer sales or use tax unless required by law, and Supplier will keep on file Buyer’s sales and use tax exemption documentation.
3. Invoice. Supplier shall invoice Buyer upon shipment of the goods or services set forth in the PO. All invoices submitted by Supplier shall be itemized and reasonably detailed. Invoices sent to Buyer more than 12 months after Supplier shipped the goods or services may be rejected by Buyer, and Buyer shall not be obligated to pay any amounts not properly invoiced within 12 months after the goods or services are shipped.
4. Payments. Unless otherwise provided in the PO or supply agreement, payment terms shall be 2% 10 net 60 days after shipment and receipt by Buyer of an undisputed invoice. Payment due dates, including discount periods if any, will be computed from the date the invoice is received by Buyer to the date Buyer’s check is mailed (or payment is otherwise transmitted by Buyer).
5. Setoff. Upon written notice to Supplier, Buyer may set off against any and all amounts otherwise due and payable to Supplier, any amounts claimed in good faith to be owed to Supplier by Buyer.
6. Goods and Services set forth in the PO. Supplier shall (a) provide to Buyer the goods and services set forth in the PO; (b) keep Buyer advised of the status of the PO; (c) permit Buyer or its’ representatives to review and observe, from time to time upon reasonable notice, Supplier’s progress or performance in connection with the PO; and (d) provide Buyer with such reports as may be reasonably requested by Buyer from time to time.
7. Changes. Buyer reserves the right at any time to change by written or electronic notification (a) specifications, drawings, samples, descriptions or any other similar criteria or data incorporated in the PO whether items to be furnished are to be specifically manufactured for the Buyer (“Specifications”); (b) quantity; (c) methods of shipment or packaging; (d) place of delivery; (e) time of delivery; or (f) any other matters affecting the PO. If any change by Buyer causes an increase or decrease in the cost of or the delivery schedule for the PO, Buyer shall make in writing an equitable adjustment in the original PO price or delivery schedule, or both. Any claim by Supplier for adjustment under this provision shall be deemed waived unless asserted in writing within ten (10) days from Supplier’s receipt of the change.
8. Shipping Terms. Unless otherwise provided in the PO, delivery of goods is to be F.O.B. Buyer’s facility and all amounts in the PO include all delivery charges thereto. If Buyer and Supplier mutually agree that goods are to be shipped F.O.B. shipping point, Supplier must comply with Buyer’s freight program using any freight forwarder or carrier designated by Buyer in the PO or identified by Buyer after submission of the PO but before delivery. Supplier shall be liable for all excess shipping or demurrage charges resulting from failure to ship and route as instructed, including shipping prior to date required. Supplier’s obligations are not severable if delivery or performance occurs in installments. Buyer is not obliged to accept shipments sent C.O.D. without its consent and may return them at Supplier’s risk and cost. Should Buyer not designate routing, Supplier shall ship goods via the most economical method that will meet the delivery date provided to Supplier by Buyer and charge Buyer actual net freight amounts paid without associated handling fees, markups, etc.. Supplier shall provide a packing list to Buyer and/or Buyer’s designee for all shipments referencing the appropriate PO number. Bills of lading, if any, shall also reference the appropriate PO number.
9. Inspection. All goods and deliverables are subject to final review, inspection and acceptance by Buyer notwithstanding any payment or initial inspection. Final inspection will be made by Buyer within a reasonable time after receipt of goods or deliverables up to and including production or customer delivery as appropriate.
10. Non-Conforming Goods or Services; Late Delivery; Time is of the essence. Buyer reserves the right to refuse any goods or services and to cancel all or any part of the PO if Supplier does not, or goods or services provided by Supplier to Buyer do not, conform to any applicable industry standards or practices, Specifications or any terms and conditions set forth in the PO, including delivery date, and herein. Acceptance of any part of the shipment of goods or any part of the services shall not bind Buyer to accept any non-conforming goods or non-conforming services simultaneously provided by Supplier, nor deprive Buyer of the right to reject any previous or future non-conforming goods or services. Buyer reserves the rights to back charge Supplier any associated sorting/rework expense and Buyer may, if it rejects any non-conforming goods, return such goods to Supplier at Supplier’s expense for transportation both ways, and Supplier shall not deliver to Buyer any replacement or substitution goods for such rejected goods unless so authorized by Buyer.
Supplier acknowledges time is of the essence. If at any time it appears Supplier will not meet such delivery date or schedule, Supplier shall promptly notify Buyer in writing of reasons for, and the estimated duration of, the delay. If requested by Buyer, Supplier shall ship such delayed goods by means to avoid or minimize delay to the maximum extent possible, including rerouting any shipment if appropriate and the use of a dedicated motor carrier or air freight, and any added costs shall be borne by Supplier. Additionally, Buyer reserves the right to chargeback Supplier for late deliveries in accordance with the following chargeback schedule. Such chargeback deductions will be setoff against future supplier payments at Buyer’s discretion:
$50 Flat Fee per occurrence + % of total Purchase Order value based on days late including:
1 Day Late = 1%
2 Days Late = 2%
3 Days Late = 3%
4 Days Late = 4%
5 Days Late = 5%
6 Days Late = 6%
7 Days Late = 7%
8 Days Late = 8%
9 Days Late = 9%
10-19 Days Late = 10%
20+ Days Late = 15%
Notwithstanding the foregoing, Buyer may cancel the PO and seek any other remedies available in accordance with applicable law, including cover any incidental and consequential damages from Supplier if Supplier does not, or goods or services provided by Supplier to Buyer do not, conform to the PO and these terms and conditions, including delivery of goods or services that do not strictly comply with the Specifications or the delivery date or schedule, if any, provided to Supplier by Buyer.
11. Termination. Buyer may terminate any PO for default, in whole or in part: (a) If Supplier fails to deliver items and material or perform the services required according to the PO and terms and conditions contained herein, or (b) if, at any time, reasonable grounds for insecurity arise as to Supplier’s expected performance (including timely performance) within ten (10) days after Buyer’s written demand for adequate assurance. Buyer may also terminate for default if Supplier becomes insolvent or makes an assignment for the benefit of creditors or commits an act of bankruptcy or files or has filed against it a petition in bankruptcy or reorganization proceedings.
Buyer may additionally terminate any PO for its convenience, in whole or in part at any time with written or electronic notice to Supplier. Upon receipt of such termination, Supplier shall promptly comply with the directions contained in such notice and shall as required, (a) take necessary action to terminate the work as provided in the notice, minimizing costs and liabilities associated with such termination, (b) protect, preserve and deliver in accordance with Buyer’s instructions any property related to the PO in Supplier’s possession, and (c) continue the performance of any part of the work not terminated by Buyer. In such event, Supplier at the time of termination may have in stock or on firm order completed or uncompleted items or raw, semi-processed or completed materials for use in fulfilling the PO. For completed items or materials, Buyer shall either require delivery of all or part of the completed goods and make payment at the PO price, or (without taking delivery) pay Supplier the difference, if any, between the PO price and the market price (if lower) at the time of termination. For uncompleted items or raw or semi-processed materials, Buyer shall either require Supplier to deliver all or part of such goods at the portion of the PO price representing the stage of completion, or (without taking delivery) pay Supplier for such goods which are properly allocable to the PO a portion of the PO price representing the stage of completion, reduced by the higher of the market or scrap value of the goods at that stage of completion. For goods which Supplier has on firm order, Buyer may at is option either take an assignment of Supplier’s rights under the PO or pay the cost, if any, of settling or discharging Supplier’s obligation under the PO. In all cases, Buyer elects to not take delivery of material, Supplier shall return all purchased materials to its supplier. Buyer shall have no responsibility to make any payments for materials that are not available for its inspections. Payment to Supplier hereunder shall be the sole and exclusive remedy available to Supplier in the event of termination for convenience by Buyer.
Buyer’s rights and remedies regarding termination under the PO shall not be exclusive and are in addition to any other rights and remedies provided by law or under the PO.
12. Warranty. Notwithstanding any other representation, warranty or agreement to the contrary, Supplier unconditionally represents and warrants the following: (a) the goods and services supplied pursuant to the PO shall be of merchantable quality, conform to the Specifications as well as applicable industry standards and practices, be suitable for Buyer’s intended uses and purposes in the ordinary course of its business and be free from defects in design, material and workmanship; (b) all services provided by Supplier shall be provided by qualified personnel reasonably skilled and trained in the performance of the services and in a workmanlike and professional manner; (c) any documentation provided to Buyer by Supplier shall meet reasonable standards of clarity and detail; (d) the goods and services provided to Buyer and the use thereof by Buyer shall not infringe on any party’s intellectual property rights, including any party’s confidential information, trade secrets, copyrights or patents; (e) Supplier is currently under no obligation to any party, nor will Supplier enter into any obligation with any party, that could interfere with Supplier delivering the goods or services in the PO; and (f) Supplier shall comply with, and the goods and services provided by Supplier shall be in compliance with, all federal, state and municipal statutes, laws, ordinances and regulations.
If the goods and services provided by Supplier to Buyer or the use thereof by Buyer infringes on any party’s intellectual property rights, including any party’s confidential information, trade secrets, copyrights or patents, the sale or use of such goods or services is enjoined, Supplier shall, at its expense and option, either procure for Buyer the right to continue to use such goods or services, replace such goods or services with equivalent non-infringing goods or services or modify such goods or services so they become equivalent non-infringing goods or services. The foregoing, however, shall not be construed to limit or exclude any other claims or remedies that Buyer may assert.
All representations and warranties shall run to Buyer, its customers and the users of the goods or services or products into which such goods or services may be incorporated. All third party warranties and representations obtained by or applicable to Supplier in connection with any good and services in the PO are hereby deemed provided, in addition, for the benefit of Buyer, its affiliates and their users and customers. Nothing in this provision shall be construed as limiting in any way Supplier’s other warranties to Buyer.
13. Material Safety Data Sheets. An appropriate material safety data sheet (“MSDS”) and labeling, as and if required by law, will precede or accompany each shipment by Supplier. Further, Supplier shall send to Buyer updated MSDS’s and labeling as required by law.
14. Indemnification. Supplier shall protect, defend, hold harmless and indemnify Buyer, including its officers, directors, employees and agents, from and against any and all lawsuits, claims, demands, actions, liabilities, losses, damages, costs and expenses (including attorneys’ fees and court costs), regardless of the cause or alleged cause thereof, and regardless of whether such matters are groundless, fraudulent or false, arising out of any actual or alleged: (a) misappropriation or infringement of any patent, trademark, trade dress, trade secret, copyright or other right relating to any product; (b) death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to result in whole or in part from any actual or alleged use of or latent or patent defect in, such product, including but not limited to (i) any actual or alleged failure to provide adequate warnings, labeling or instructions, (ii) any actual or alleged improper construction or design of said product, or (iii) any actual or alleged failure of said product to comply with Specifications or with any express or implied warranties of Supplier; (d) violation of any law, statute, ordinance, governmental administrative order, rule or regulation relating to the product, or to any of its components or ingredients, or to its manufacture, shipment, labeling, use or sale, or to any failure to provide a MSDS or certification; (e) act, activity or omission of Supplier or any of its employees, representatives or agents, including but not limited to activities on Buyer’s premises and the use of any vehicle, equipment, fixture or material of Supplier in connection with any sale to or service for Buyer; and (f) any installation by Supplier of product covered by any PO.
Supplier shall promptly notify Buyer of the assertion, filing or service of any lawsuit, claim, demand, action, liability or other matter that is or may be covered by this indemnity, and shall immediately take such action as may be necessary or appropriate to protect the interests of Buyer, its officers, directors, employees and agents. Buyer shall at all times have the right to direct the defense of, and to accept or reject any offer to compromise or settle, any lawsuit, claim, demand or liability asserted against Buyer or any of its officers, directors, employees or agents. The duties and obligations of Supplier created hereby shall not be affected or limited in any way by Buyer’s extension of express or implied warranties to its customers.
15. Limitation of Liability. In no event shall Buyer be liable for any punitive, special, incidental or consequential damages of any kind (including but not limited to loss of profits, business revenues, business interruption and the like), arising from or relating to the relationship between Supplier and Buyer, including all prior dealings and agreements, or the conduct of business under or breach of these terms and conditions or any PO, Buyer’s cancellation of any PO(s) or the termination of business relations with Supplier, regardless of whether the claim under which such damages are sought is based upon breach of warranty, breach of contract, negligence, tort, strict liability, statute, regulation or any other legal theory or law, even if Buyer has been advised by Supplier of the possibility of such damages. In addition, Buyer’s total liability to Supplier, notwithstanding the forgoing, shall not exceed the total value of the PO giving rise to such potential liability.
16. Force Majeure. Supplier and Buyer, as the case may be, shall be excused for delays in performance or failure of performance to the extent arising from causes beyond such party’s reasonable control, including without limitation strikes, wars, fires, acts of terror or acts of God, such as floods and earthquakes. In the event of any such event or condition, the party whose performance is excused hereunder shall notify the other party promptly thereof and shall make diligent efforts to perform at its earliest opportunity. If Supplier’s performance is excused hereunder, Buyer may cancel the PO and Supplier agrees to provide to Buyer the assistance and information necessary for Buyer to make, have made, or otherwise procure replacement goods and services.
17. Title. Unless otherwise provided in the PO, Title shall pass to Buyer upon Buyer’s acceptance of goods pursuant to the delivery terms.
18. Risk of Loss. Risk of loss of all goods shall remain with Supplier until receipt of the goods pursuant to the PO delivery terms.
19. Confidential Information. Supplier shall not, without the prior written consent of Buyer, disclose to any third party Confidential Information (as defined below) or use any such Confidential Information for any purpose other than in connection with providing to Buyer the goods and/or services set forth in the PO. “Confidential Information” shall mean any information that is not already in the public domain or independently developed or obtained by Supplier relating to the following: the existence of the relationship with Buyer; Buyer’s purchasing systems or practices (including, without limitation, descriptions of purchased items, quantities purchased and prices paid); the nature of the services performed or deliverables or goods delivered under the PO; or any data, designs or any other information relating to Buyer or its affiliates or their businesses. Notwithstanding the foregoing, Supplier may disclose Confidential Information (a) to Supplier’s employees having a need to know such information in connection with Supplier’s performance of the PO or (b) to comply with applicable laws, court orders or government regulations, provided, in such case Supplier promptly provides notice thereof to Buyer prior to any disclosure to allow Buyer to comment thereon and to seek a protective order or similar relief. Supplier agrees that it will take appropriate action by instruction, agreement or otherwise with its employees who are permitted access to Confidential Information to notify them of the obligations hereunder.
20. Governing Law. The PO and any contract formed hereunder, shall be governed by, and construed under the internal laws of the State of Florida, without regard to principles of conflict of law, as the same may be from time to time in effect, including, without limitations the Uniform Commercial Code as in effect in the State of Florida.
21. Dispute Resolution. Subject to the Mediation provision below, any dispute that might arise between Supplier and Buyer relating to or arising from the PO or these terms and conditions shall be settled by binding arbitration in accordance with the then prevailing Commercial Arbitration Rules of the American Arbitration Association (“AAA”), except where those rules conflict with this provision, in which case this provision controls. Arbitration shall be conducted before a single arbitrator selected from the AAA’s National Roster of Arbitrators. The arbitration shall be held, and Supplier and Buyer irrevocably consent to arbitrate, in Hillsborough County, Florida unless they mutually agree upon an alternative location. The arbitration shall be conducted in English. In rendering the award the arbitrator must apply the substantive law of Florida, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. Under no circumstances shall the arbitrator award damages in excess of or inconsistent with the limitations contained in the “Limitation of Liability” section of these terms and conditions. Any court with jurisdiction shall enforce this provision and enter judgment on any award. Supplier and Buyer will agree upon, within 45 days after arbitration is initiated or, if they fail to agree, the AAA will design procedures that they will follow to assure that the arbitration will be concluded and the award rendered within no more than six months from selection of the arbitrator. Supplier and Buyer each have the right before or during the mediation or arbitration to seek and obtain from the appropriate court provisional remedies such as attachment, an injunction, replevin, etc., to avoid irreparable harm, maintain the status quo or preserve the subject matter of the arbitration.
22. Mediation. Prior to initiation of arbitration, Supplier and Buyer must attempt to mediate, within a period of 45 days after the request for mediation, the dispute using a professional mediator from the AAA or like organization selected by agreement or, absent agreement, through selection procedures administered by the AAA. In no event will mediation delay commencement of the arbitration for more than 45 days or interfere with the availability of emergency relief.
The arbitration and mediation proceedings shall be confidential and neither party shall publicize the nature of any dispute or the outcome of any mediation or arbitration proceedings except to the extent required by law, provided in such case the party required to make any disclosure informs the other party of such requirement to allow the other party to seek a protective order. The mediator or arbitrator, as the case may be, shall issue appropriate protective orders to safeguard each party’s confidential information.
23. Assignment. The PO and the rights and duties under the PO and these terms and condition shall not be assignable by Supplier without the prior written consent of Buyer, which written consent shall not be unreasonably withheld.
24. Relationship. The relationship of Buyer and Supplier is that of independent contractors, and nothing contained herein shall be construed to (a) give either party any right or authority to create or assume any obligation of any kind on behalf of the other or (b) constitute Buyer and Supplier as partners, joint ventures or otherwise as participants in a joint or common undertaking. The relationship between Buyer and Supplier is not one of exclusivity unless mutually agreed in writing by Buyer and Supplier.
25. Gifts/Gratuities. Supplier warrants that neither Supplier nor its agents or representatives has accepted or provided gratuities of any kind from or to any employee of Buyer in connection with the PO.
26. Miscellaneous. A party’s failure to act with respect to another party’s breach of any provision contained herein does not constitute a waiver. If any provision herein is held to be invalid or unenforceable, such provision shall be narrowly construed, if possible, or otherwise deemed ineffective and the remaining provisions shall not be affected. The terms and conditions in the PO and herein will survive the fulfillment of the PO.
27. Complete Agreement. These terms and conditions contain all the terms and conditions that apply to the parties hereto and no other terms or agreements, oral or otherwise, except as expressly incorporated herein shall be deemed to exist, or to bind any of the parties hereto.